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Top Ten Questions Asked at First Consult for Divorce

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One of the heaviest doors to open is the one that leads into your first meeting with a divorce lawyer. In addition to all of the emotional stress that you carry, there are a seemingly endless number of questions that fill your mind about the path that you are about to travel.

As an attorney who is exclusively focused on the practice of family law, I have met with hundreds of clients who have been in this exact situation. I believe that one of my primary roles during this initial consultation is to simply inform them about the divorce process so that they can prepare for the journey ahead.

Below are some general answers to the top ten questions that I have received from people during these first consults. This list neither constitutes nor is intended to be legal advice. Please be advised that if you need legal counsel, you should consult an attorney regarding your individual situation.

1. How do you calculate child support?
Answer: Child support is calculated using a standard formula, but every state has a different approach. For example, in Texas, 1 child= 20%; 2 children = 25%, 3 children = 30%, 4 children = 35%, etc. These percentages are based on net resources, or after-tax dollars. You can deduct social security, Medicaid payroll taxes, union dues, and the healthcare premium of the insurance for the children in calculating this number. There is also an offset if you are supporting multiple children in other court orders. And for those higher wage earners, the cap for child support for monthly net resources is $7500. This means that the maximum child support that one can receive in Texas for 1 child is $1500, 2 kiddos, $1875, and 3 children $2250. Rates are higher in states like New York, and some states such as Oklahoma also factor in costs of daycare. Most attorneys general offer a Child Support Calculator on their Web site; for example, I practice in Texas, and the Attorney General provides onehere.

2. Do I qualify for spousal support/maintenance?
Answer: It depends on many factors. First, spousal support is temporary versus maintenance that continues beyond the pendency of the divorce. Second, in order to get awarded spousal support, you need to show financial need to cover your essentials, such as housing, car, utilities, insurance. To receive spousal maintenance after the divorce is final, you need to show a large disparity in income, lack of job opportunities, and/or absence from the job market (i.e. to be a stay-at-home parent). In recent years, the law expanded maintenance beyond 3 years in cases of longer term marriages, so that it incremental increases in length with the length of marriage. Still, the threshold for any maintenance is generally a minimum of 10 years to qualify.

3. I want full custody- how do I get it?
Answer: There is no such thing as "full custody." However, there is "primary conservatorship," which means that you name where your child lives for residency restrictions and you have majority access. Typically, you need to either be able to illustrate that a) you are the primary parental figure with a background showing that you prioritize your children and/or b) your spouse/bioparent is unfit/uninterested in being the primary conservator. On the latter, this generally requires them to have a drug/alcohol issue, a history of involvement with CPS/criminal activity, proven history of violence or irrational/dangerous behavior in some palpable, diagnosable way. And of course, there's always the absent/workaholic parent who has moved onto a new job/relationship and who has no time to parent; they usually readily relinquish primary conservatorship because it is inconvenient, messy and much harder to manage than simply showing up with tickets to Six Flags or iPads and being the "fun weekend parent."

4. Do dads have equal rights as moms for primary conservatorship?
Answer: As a marketing ploy, some family law firms tout themselves as "father's rights" firms. The truth is that, while some judges may favor the traditional model of a family with the mother as the primary caretaker and the father as the sole breadwinner, the choice of who will serve as primary managing conservator rests on the level of each spouse's involvement in the children's lives. If both spouses were working full-time and they shared parenting duties 50/50, then the father has just as solid an opportunity to be named the primary managing conservator as the mother. The key consideration is whether the father was equally (or more) involved in the children's lives and took a vested interest on a daily basis in parenting. Here, the court seeks to maintain what is closest to continuity for the children.

5. I used to be have a shady past- is that going to factor into this case?
Answer: How shady are we talking? Everyone has a different moral compass and a different definition of shady. Examples of past behaviors relevant to your case: recent suicide attempts, DWI charges, CPS investigations that resulted in "reason to believe." Also, try to wrack your brain to ensure that you do not have malingering videos/photos of you online in ... shall we say ... "compromising" positions. The Internet never forgets and its microscope can be ugly, but the past is also relative: if you've been sober for over a year and are actively seeking recovery, or if you can prove (ideally with documentation) that you have changed your ways and reformed the "old you" prior to filing, your shady past could be a distant memory irrelevant to the judge or jury. But one thing that you must do is share everything with your attorney; even if you don't think your spouse knows and it won't come out in court, you need to prepare your attorney in the event that it does appear. (See my previous article "Top Ten Things to Tell Your Lawyer in the First Consultation.")

6. Do I have to go to court?
Answer: It depends on the result that you want and how badly you want it. It also depends on your spouse's position. To avoid court, both parties need to take reasonable positions so that they can settle outside of court in mediation or collaborative law - which will save them both a lot of stress, time and money. But if either party is looking at the process as a way to "get back" at the other spouse, or if either party is crazy (especially over money), you are destined to be sitting in the witness box hot seat. And if your spouse has hired a powerhouse firm that needs 60% just to cover their overhead and bloated costs, then you may find yourself in court so much that you start to memorize the cafeteria menu and say goodbye to the security guards, who are now your friends.

7. How long is this going to take?
Answer: Divorce can take as little as 60 days or more than a full year. You are in the driver's seat, but the other side may drag it out. There also might be strategic reasons (recovery, simultaneous criminal proceedings, bankruptcy, depression, age of children) that you delay the process; this is particularly true in contested cases that might be contested later, since it is important to get the order correct the first time around. For future modifications, you can do so after one year of the decree and finalize within 20 days after service. This rarely happens so quickly, however, since it takes a while to gather the evidence necessary for a trial or hearing.

8. How much is this going to cost?
Answer: The choice is yours - do you want to send my kids to college or yours? Seriously, costs of a divorce range from $2,500 to well over $40,000 just for attorney fees and court costs. There are no guarantees because some parties are ruthless, or the firms that they hire see their case more as a money machine than the future of a family. However, there are the few and the proud, the straight and narrow, who charge a fair sum and "get her done" for a reasonable fee in a reasonable time. You should always ask for full information about a prospective attorney's retainer policy, fee structure and billing practices before hiring. And if you walk into a firm with a beautiful skyline view, fancy espresso machines, armies of attentive staffers and gorgeous furniture, you better enjoy it ... because you are the one paying for all of that.

9. This should be simple. Do I really need a lawyer?
Answer: There are no simple cases (unless you are willing to lose everything). Many attorneys advertise "flat fee" divorces, but you get what you pay for. Even if you were a fellow family lawyer, I would advise hiring an attorney. Would you operate on your own arm if it were broken? The forms at the courthouse are adequate for you to represent yourself, but a bad divorce decree is hard to undo. It can be much more expensive to pay an attorney to mop up the spills of a bad pro se case than to simply hire a competent.

10. What happens if we get back together- did I just waste all of my money?!?
Answer: In my ten years of practice and more than 600 closes cases, this has only happened twice. So, while you might be in that one-third of one-percent, chances are that you are not wasting your money. However, just to make you feel better, most retainers are fully refundable per the Professional Code (at least mine is). So, you are covered.

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